Upagara Marie Andre represented by power of Attorney, Sri Andre vs Samaraj

V. Ramaswami, J.—This is a petition to revise the order of the learned Principal Subordinate Judge of Pondicherry appointing an Advocate-Commissioner to measure certain lands. It appears that on 11th April 1970 the father of the plaintiff sold certain extent of land for a sum of Rs. 33,000/- to the defendant. Out of the total consideration of Rs. 33,000/- the defendant paid Rs. 24,300/- in cash and for the balance of Rs. 8,700/- he executed a promissory note. The sale deed contained a recital that the entire consideration has been paid by way of advance and the execution of the promissory note and the sale deed was also registered. Since the defendant failed to pay the balance amount of Rs. 8,700/- the plaintiff, after the death of his father, as the legal representative has filed the suit on the promissory note for the recovery of the said sum. The defence was that though the plaintiff''s father agreed to sell and the document also recited that an extent of 9 acres 55 cents was sold for a consideration of Rs. 33,000/- at the time of the execution of sale deed, the plaintiff''s father agreed that if the extent is found to be less than what is sought to be conveyed, he would forego the proportionate consideration. On the basis that the measurement is less than 9 acres 55 cents the defendant wanted a Commissioner to be appointed to measure the land. I am unable to see how this plea or the application for the appointment of a Commissioner can be raised at all in this suit filed on a promissory note. The suit filed by the plaintiff was not for recovery of the balance of consideration due under the sale deed, dated 11th April 1970. The consideration payable for the sale deed, dated 11th April, 1970 has been paid by the payment of Rs. 24, 300/- in cash and the execution of the promissory note for the sum of Rs. 8,700/-. Therefore, what is sought to be recovered is the amount due under the promissory note and it cannot be equated with a suit for recovery of the balance of consideration for the sale. It is true that the consideration for the promissory note is the balance of the amount payable for the sale. The promissory note is supported by consideration by the execution of the sale deed, but that does not mean that this could be treated as a simple suit for recovery of balance of consideration. If only the suit is for recovery of the balance of consideration due under the sale deed, dated 11th April 1970, this plea even if it is true, would be open for the defendant to be raised in the written statement. But, that being not so, it is not open to the defendant to raise that plea in this suit. Whatever remedies that are available to him otherwise than this plea by way of defence to the suit are left open. The order of the learned Subordinate Judge is, therefore, not correct, and it is without jurisdiction. Accordingly that order is set aside, but there will be no order as to costs.